In a carefully worded letter to top Judiciary Committee Republican Sen. Jeff Sessions, the Obama administration says it might withhold some of the memos Supreme Court nominee Elena Kagan wrote when she served in the Clinton White House.
The letter says Obama “does not intend” to assert executive privilege to block the release of the documents but neither does it foreclose the possibility. It says Obama is consulting with a representative of President Clinton to determine which documents to block.
“President Obama does not intend to assert executive privilege over any of the documents requested by the [Judiciary] Committee,” the June 1 letter from White House counsel Bob Bauer says. “Of course, President Clinton also has an interest in these records, and his representative is reviewing them now.”
The issue is important because Kagan’s paper trail is remarkably thin, provoking fear in both conservatives and liberals who say they don’t know what Kagan’s true views are on a range of critical issues.
But retrieving more than 160,000 pages in memos from the William J. Clinton Presidential Library is proving onerous.
Sessions sent a letter to the White House on May 28 asking why Clinton’s representative was reviewing the documents alongside Obama’s staff.
Bauer’s letter says there are two reasons: First, the documents might be requested under the Freedom of Information Act (FOIA) by the general public and, second, to prevent “classified national security information or personal privacy information” from being released, just like in the cases of the nominations of Justices John Roberts and Sonia Sotomayor.
Republicans say the first rationale – regarding FOIA requests — is bizarre because, as the letter says, the Judiciary Committee’s request is privileged, unlike a FOIA request. In other words, while Clinton can block the release of documents requested under FOIA, he can’t block documents requested by the committee, so the relevance of FOIA is a mystery.
Bauer’s letter says Clinton’s review of the documents “will not prevent the Archives from producing these documents to the Committee in advance of June 28” – the day of Kagan’s first hearing before the Judiciary Committee.
Republicans say that Bauer’s language means Obama could release hundreds of thousands of pages of documents as late as June 27, the day before the hearing but still “in advance” of it.
A final issue of dispute regards whether Clinton retains authority to assert executive privilege over the documents. Under Executive Order 13489, enacted by Obama, only Obama can assert executive privilege to block the documents.
The letter suggests Clinton might try to assert executive privilege: “Any discussion for resolving executive privilege claims under Executive Order 13489 is premature. To the extent President Clinton has confidentiality interests in the documents that should be protected, we will first work with his representative to try to reach a mutually satisfactory accommodation with the [Judiciary] Committee, as such interests traditionally have been resolved by the Executive and Legal Branches.”
It’s unclear whether that negotiation would be between Obama, Clinton and the Judiciary Committee’s Democratic Chairman, Sen. Patrick Leahy, or involve Sessions as well. But as one Republican notes, Leahy sets the committee’s schedule, not Sessions.